Brett Pellegrini et al. v. Middlesex Mutual Assurance Company (2011)

MEMORANDUM OF DECISION ON MOTION TO DISMISS (# 107)

FACTS

The plaintiffs, Brett Pellegrini, Karen White–Pellegrini, William White and Sarah White, filed a four-count complaint against the defendant, Middlesex Mutual Assurance Company, on November 22, 2010.   The defendant filed an appearance in this action on December 2, 2010.   Following the granting of a motion for default for failure to plead on June 29, 2011, the defendant filed an answer and special defenses on July 8, 2011.

On August 10, 2011, the defendant filed a motion to dismiss accompanied by a memorandum of law in support thereof as well as copies of summonses and complaints from two previous actions the plaintiffs filed against the defendant.   The ground for the motion to dismiss is that the prior pending action doctrine precludes the plaintiffs from filing the present action.   On August 16, 2011, the plaintiffs filed a motion for an extension of time to file a memorandum of law in opposition to the motion to dismiss, seeking a forty-five-day extension.   This court granted the motion for extension of time on September 1, 2011, but the plaintiffs have not filed a memorandum of law in opposition to the motion to dismiss.

DISCUSSION

“[A] motion to dismiss is the proper vehicle to raise the issue of a prior pending action, [although] the doctrine does not truly implicate subject matter jurisdiction.”  (Internal quotation marks omitted.)  Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009).  “Any claim that the pendency of a prior suit between the same parties, for the same thing, will abate a latter suit ․ formerly could be raised by a plea in abatement ․ The plea in abatement;  Practice Book, 1963, § 93;  has however, since been replaced by the motion to dismiss.   Practice Book §§ 142, 143 (now §§ 10–30 and 10–31];  1 Stephenson, Conn. Civ. Proc. (2dEd.1982 Sup.) § 103a.   The parties in the present case properly proceeded upon the assumption then that the motion to dismiss was the proper device by which to request that the trial court dismiss the second action.   1 Stephenson, supra, § 104a ․” (Citations omitted;  internal quotation marks omitted.)  Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985).

While the defendant refers to a 2006 action on the face of the motion and provides a copy of the summons and complaint from a different 2006 action, it also refers to a 2009 action in its memorandum and provides a copy of the summons and complaint from that action.   The defendant argues that the prior actions are identical to each other and to the present action and involve the same parties.

“[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court.   The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement.”   (Internal quotation marks omitted.)  Bayer v. Showmotion, Inc., supra, 292 Conn. 395.   In the present case, a review of the court records of the cases to which the defendant refers as prior pending actions ¹ reveals that those cases have been dismissed.   A judgment of dismissal in each of the 2006 actions was entered on March 31, 2009, and February 17, 2011 respectively, and a judgment of dismissal of the 2009 action was entered on March 22, 2010.   A subsequent motion to reopen the judgment of dismissal in the 2009 action was denied.

As the prior actions have been dismissed, they are no longer pending.   Therefore, the motion to dismiss cannot be granted on the ground of prior pending action.

Furthermore, as the motion to dismiss was filed after the answer, contrary to the order of pleadings' requirements set forth in Practice Book § 10–6,² the defendant has waived its right to file a motion to dismiss on the ground of prior pending action pursuant to Practice Book § 10–7 ³ as the ground does not implicate the court's subject matter jurisdiction.   See Halpern v. Board of Education, supra, 196 Conn. 652 n.4. Accordingly, the motion to dismiss is also denied for the additional reason that the defendant, pursuant to Practice Book §§ 10–6 and 10–7, waived its right to file the motion to dismiss on this ground as it had already filed an answer at the time it filed the motion.

CONCLUSION

For the foregoing reasons, the motion to dismiss is denied.

Woods, J.

FOOTNOTES

FN1. The docket number listed for the 2006 action in the motion to dismiss does not match docket number indicated on the copy of the summons provided to this court.   Regardless of this discrepancy, court records indicate that both 2006 actions as well has the 2009 action have been dismissed..  FN1. The docket number listed for the 2006 action in the motion to dismiss does not match docket number indicated on the copy of the summons provided to this court.   Regardless of this discrepancy, court records indicate that both 2006 actions as well has the 2009 action have been dismissed.

FN2. Practice Book § 10–6 provides in relevant part:  “The order of pleading shall be as follows:(1) The plaintiff's complaint.(2) The defendant's motion to dismiss the complaint ․* * * *(5) The defendant's answer (including any special defenses) to the complaint ․.  FN2. Practice Book § 10–6 provides in relevant part:  “The order of pleading shall be as follows:(1) The plaintiff's complaint.(2) The defendant's motion to dismiss the complaint ․* * * *(5) The defendant's answer (including any special defenses) to the complaint ․

FN3. Practice Book § 10–7 provides:  “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”.  FN3. Practice Book § 10–7 provides:  “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”

Woods, Glenn A., J.